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Jenner & Block recently obtained a preliminary injunction on behalf of Fox against Alki David, billionaire entertainment personality and heir to the Coca-Cola Hellenic shipping and bottling company, and his Internet streaming companies FilmOn and Aereokiller. The injunction prevents David, FilmOn and Aereokiller from retransmitting, streaming or otherwise publicly performing the local broadcasts of Fox, ABC, NBC and CBS’ programming within the geographic reach of the Ninth Circuit. The Honorable George Wu of the Central District of California held that the Transmit Clause makes it unlawful for David, FilmOn and Aereokiller to retransmit Fox’s copyrighted programming without Fox’s consent.

The December 27, 2012, decision is significant for the entire broadcast industry because Judge Wu’s well-reasoned decision went against and disagreed with Cartoon Network LP, LLLP v. CSC Holdings, Inc., which held that Cablevision’s Remote Storage DVR did not violate the broadcaster plaintiffs’ exclusive public performance rights.

In his critique of Cablevision’s interpretation of the Transmit Clause, Judge Wu explained that “a purely formalist textual analytic approach to copyright cases involving alleged infringement of the performance right … [may fail to] ‘ … prevent the form of free riding that consists of waiting for someone to spend money creating a valuable expressive work and then preventing him from recouping his investment by copying the work and selling copies … ’” (citing Judge Posner).